Starr Clientele
Kenneth Starr's boosters continue to defend his extraordinary triple role: Republican partisan, corporate superlawyer and Whitewater prosecutor. But no attorney, no matter how smart, no matter how decent, could manage such a controversial workload without difficulties. In a record filled with instances of Starr's insensitivity to appearances, here are still more examples.
On August 1, 1994, Starr visited the Justice Department to meet with Solicitor General Drew Days, the government's chief appeals lawyer. Starr was there to represent the views of a client, the American Automobile Manufacturers Association, in a dispute over federal pollution regulations. Four days later, on August 5, the special court panel that picks independent counsels announced it had appointed Starr to investigate Whitewater. Days, it seems, was left to consider Starr's in-person request for help on the pollution matter knowing that Starr was now responsible for probing charges of criminal wrongdoing by Days's boss, Bill Clinton.
Did Starr know on August 1 that he was under consideration to be the Whitewater prosecutor? Consistent with the appointing panel's policies, Judge David Sentelle, its head, declines to comment. A spokesman at Starr's law firm, Kirkland & Ellis, also declined to provide an answer. Starr did not respond to phone calls or written questions on this and other matters. But Attorney General Janet Reno had asked the panel to pick a Whitewater counsel a full month before, on July 1. And Daniel Pearson, appointed in July 1995 for a probe of Commerce Secretary Ron Brown, says that Sentelle's panel contacted him to gauge his interest in being a special prosecutor forty days before it announced his appointment, and asked him if he wanted the Brown matter in particular seven to ten days before. If Starr indeed knew on August 1 that he was being considered, his visit to Days showed serious disregard for appearances. Justice officials who knew of the meeting were stunned when the Whitewater appointment was announced.
Starr seems to take a selective approach to ethics considerations. We now know that up until his appointment, Starr represented International Paper, which once sold land to the Whitewater Development Company -- noteworthy, since Republican lawmakers claimed that representing the same company years earlier disqualified Starr's predecessor, Robert Fiske. Starr's outside ethics counsel, Samuel Dash, says he first learned that Starr represented International Paper from an April New Yorker article. Why hadn't Starr ever mentioned it? "He doesn't come to me unless he believes [a representation] raises an issue," says Dash.
Most Starr critics focus on his partisanship. But persecuting the Clintons beyond what the evidence justifies simply for political gain could be accomplished only at severe peril to reputation. The real risk to government integrity does not require double-dealing by Starr. Rather, it is the more subtle but equally pernicious possibility that Starr's unique power to destroy this presidency may be tilting the playing field in disputes between his clients and the executive branch. There is no proof that Clinton or his aides have coddled Starr clients. But a citizen aware of accusations that corruption is at the heart of Whitewater might not be so sure.
Large corporations still flock to Starr, even though his spokesman says he devotes only 25 percent of his time to private practice. Only after becoming Whitewater counsel did Starr emerge as one of the key lawyers for the tobacco industry, which is facing the strongest government attacks in its history. Hughes Aircraft, hit with separate criminal and civil verdicts for defrauding the government, has turned to Starr for relief on appeal.
In March, when Starr argued an antitrust case before the Supreme Court, the Justice Department took his side. In December 1994, the Clinton Administration reversed plans to recall 6 million General Motors trucks, vehicles whose safety has been at issue in major lawsuits Starr has defended for G.M. Starr did not participate in G.M.'s drive to prevent a recall, but his right-hand law firm colleague, Paul Cappuccio, did. (In an unrelated Supreme Court product-liability case, Starr, representing G.M., and I, on behalf of consumer groups, have submitted amicus briefs on opposite sides.) Starr represented Bell Atlantic in a suit contesting a federal law that banned telephone companies from selling video services; the case was mooted when Congress, supported by Clinton, repealed the ban in February.
Starr's representation of Bell Atlantic was itself sidetracked by a tug of war over ethics. Bell Atlantic filed suit, naming the government as defendant, when Starr was Bush's Solicitor General. Just six days before Bush left office, Justice lawyers prepared a memo reversing the department's longstanding view that criminal conflict-of-interest laws barred former officials, for one year, from signing legal papers on behalf of private parties in cases where the government was also a party. In April 1993, three months after leaving government, Starr signed a brief on behalf of Bell Atlantic in its suit. He stopped when Clinton Justice officials, including Associate Attorney General Webster Hubbell, advised him that the department was concerned that such action was illegal. (Hubbell is now serving a twenty-one-month prison sentence after pleading guilty to fraud charges brought by Starr in the Whitewater probe.)
Starr has shown in the past that he can spot an apparent conflict of interest when it suits his cause: He helped press a South Carolina federal judge who had issued rulings against G.M. to recuse because the judge, in a public speech, had made jokes at corporate lawyers' expense. As special prosecutor, Starr convinced an appeals court to disqualify an Arkansas judge who had dismissed an indictment against Governor Jim Guy Tucker; the judge had previously associated with the Clintons. Starr, himself a former judge, was probably right to ask for the disqualifications. But he seems unwilling to hold himself to a comparable standard.
Former Attorney General Elliot Richardson, commenting on the Starr matter, says, "It is the people who are the most confident about their integrity that tend to be the most careless about appearances." The whole point of the independent counsel law, notes Chesterfield Smith, former president of the American Bar Association, is to assure the public that prosecutors are acting without divided loyalties. Smith says a special prosecutor who engages in outside matters "tears down trust in government and our belief in justice."
Dash reports that Starr, although convinced he has done nothing wrong, is concerned about the effects on his investigation and has no further oral arguments for private clients on the horizon. But a partial reduction in law firm activities is too little and comes too late. Starr seems impervious to the effect his stance may have on the erosion of ethical standards, standards our system relies on to police not just the brightest and most honest attorneys and government officials but all of them. Three months before becoming Whitewater counsel, Starr was explaining his opposition to Clinton's claim of immunity from Paula Jones's harassment suit. "I think the President is one of us and should be treated like one of us," he said. Lost in the arrogance of his own power, it is now Kenneth Starr who needs to come back to earth.
DAVID HALPERIN
David Halperin is a lawyer in Washington, D.C.
